The Daily Universe & Censorship

As noted in my sideblog, BYU pre-med student Cary Crall is getting quite a bit of buzz for a letter that he wrote to the Daily Universe editor on Proposition 8 that was subsequently censored when the paper had second thoughts. See the following:
Interview with BYU student Cary Crall by Cynthia L. @ By Common Consent
Everyone Should Know the Story of Cary Crall by Joanna Brooks @ ReligionDispatches.org
I’d say that the decision to censor the letter was a colossally bad move. The censorship got the letter far more attention than it would have received otherwise and narrowly saved BYU from appearing open-minded and willing to engage in thoughtful public self-critique of the church’s actions. (BYU breathes a sigh of relief.)
I had my own incident with The Daily Universe and censorship several years ago, in September 2004. A reporter had contacted me and Paul asking to do a feature story on our interfaith marriage. We agreed. We answered a lot of questions about how we made it work and seemed to get along well with the reporter. She gave us an estimated date for the story’s publication and told us to look out for it.
The day that the story was supposed to run came and went. I called the reporter to find out what happened, and it sounded like she was in tears. She said that the editors had made a last-minute decision not to run the story because it would be seen as glorifying marriage outside of the temple. I pointed out that the paper had done an article on interracial marriage not long ago, and surely this wasn’t any more controversial than that. She said, “I know, and we’re still getting flack for that story as well.” Given the recent PBS story on our interfaith marriage, I would say the DU reporter’s instincts in thinking we had an interesting story to tell were right on.
Those who are familiar with the time line of my life will realize that it was not long afterward that my husband made his surprise request for a divorce, so I was actually grateful in hindsight that the story had been canned. Going through our marital problems having just announced our union to the entire campus would have made things much more embarrassing and difficult.
Still, if an interfaith marriage story was considered too risqué for print and an interracial marriage story gave the editors and reporters significant backlash, I’m genuinely surprised Crall’s editorial was published at all, and not even phased at its subsequent censorship.
The Daily Universe has now returned to safer waters, such as male students complaining about immodest “girls” on campus. Why are the men at BYU ogling “girls” instead of adult women?
I’m not sure I want to know.

Comments

The Daily Universe & Censorship — 47 Comments

  1. My problem with the letter wasn’t that it was “offensive” (to use the DU’s words); it was that it showed an ignorance of how the court system works.
    The letter’s main argument indirectly takes the form of a syllogism that goes something like this:
    Factual background: Proponents of Proposition 8 used various arguments in presenting their case to voters.
    Major premise: If the proponents of Proposition 8 had still believed those arguments, they would have used them at trial.
    Minor premise: They did not use many of these arguments at trial.
    Conclusion: Therefore, proponents of Proposition 8 no longer believe these arguments.
    Now, that’s a fine syllogism, but the major premise begs the question. It assumes that the purpose of the trial court and the purpose of voters were the same. They were not.
    The purpose of the court (and of further courts that will consider the issue) is not to determine whether a ban on same-sex marriage is good policy. That was the voters’ job. The court’s purpose was to determine whether such a law is constitutional.
    A law can be good policy and still be unconstitutional. Or a law that is bad policy can allowed by the Constitution. The issues are quite separate from each other.
    The reason that many of the issues used in the campaign were not raised by Prop 8 proponents in court was because the attorneys felt they were legally irrelevant. Their position was that a definition of marriage that is restricted to both-sex couples is by its very nature constitutional (I’m simplifying a bit), and it doesn’t really matter, from a legal standpoint, whether that definition is a good idea. The lawyers also explicitly argued that the reasons voters decided to vote a certain way were irrelevant to constitutionality — even if they voted for a law for bad reasons, that by itself doesn’t make the law unconstitutional.
    To have brought up all the campaign arguments in court would have only undermined the position of the pro-Prop 8 lawyers.
    In other words, the main premise of the letter is demonstrably wrong.
    All that said, I agree that making the letter harder to find on the DU web site (you can still download it here, so I’m not sure it’s correct yet to say that the letter was censored) was a blunder at best. All that decision did was call more attention to the letter and make the paper look like a pawn of those who are afraid of discussion of the issues.
    Furthermore, I also think that running the letter originally was the right decision. Crall made his case in a respectful manner, and I just don’t know why anyone would find it offensive (he parsed his words very, very carefully, it appears, to avoid making offense). Better it would have been to let the letter, flawed as it is, be the catalyst for a healthy discussion than to pretend that there’s nothing worthy of discussion.
    (For the record, nothing I say here should be construed one way or another to indicate anything about my opinion on various issues underlying Prop 8 itself, nor, for that matter, my opinions on the attorneys’ legal strategy. I just have seen nobody anywhere yet discuss the letter itself on its merits, so I figured I might as well do so here.)
  2. Furthermore, I also think that running the letter originally was the right decision. Crall made his case in a respectful manner, and I just don’t know why anyone would find it offensive
    Methinks you need to get to know your co-religionists a little better. It’s pretty obvious why many of them would find it offensive. Disagreeing with the prophet or the institutional church is de factooffensive in their eyes. You can parse as much as you like, you can be as careful and respectful as you want, and it will still be offensive.
    Thus saith Dallin H. Oaks:
    it’s wrong to criticize leaders of the Church, even if the criticism is true, because it diminishes their effectiveness as a servant of the Lord.
    From lds.org
  4. I find it interesting that the only reason I know anything about this guy’s letter is because the DU pulled it.
    Despite what BYU seems to believe, I would be willing to wager good money that the majority of church members don’t give a crap about what is published in the student newspaper.
    Censorship always draws more attention to the item being censored. I thought mankind learned that lesson a long time ago.
  5. By the way, the letters about girls’ shorts and skirts? Pure comedy gold!
    My response to his query regarding temple garments? “They will wear longer shorts/skirts when they have to. In the meantime, dude, go to class instead of ogling the 150 girls coming out of a mission prep class.”
  6. Alex, you wanna know what’s even creepier about him ogling 150 girls as they come out of class–he’s married! (I looked him up on FB.) Stay classy, Wes!
  7. (PS: somebody commented on that letter on the DU website, and Wes replied to the comment with something that is possibly even more offensive and sexist than his original letter..)
  8. I agree that taking the letter down was a colossally bad move.
    Eric makes a very good point about the flaw in the writer’s logic, but that the piece cannot reasonably be considered offensive.
    But even if Cary Crall’s main argument doesn’t work, he’s right that many (most?) of the claims and scare tactics that (LDS and other) political organizers used to sell Prop. 8 to the voters were dishonest. That the Universe would pull the letter (claiming that it was an independent decision due to the letter’s offensiveness) just makes it look that much more like LDS leaders have a bit of an honesty/integrity problem when it comes to politics.
  9. “Censorship always draws more attention to the item being censored. I thought mankind learned that lesson a long time ago.”
    Maybe the editors at the paper knew that and wanted the letter to get more attention.
    “you wanna know what’s even creepier about him ogling 150 girls as they come out of class–he’s married!”
    Wait, when I got married, I was supposed to stop ogling guys? How come?
  10. katyjane – you aren’t supposed to publish for the world (universe?) the fact that you spend your afternoons ogling members of the opposite sex and judging them on the sexiness (or lack thereof) of their attire.
  14. You call that account “bland”? Good grief. I tend to associate “bland” with a lack of boilerplate and editorializing.
    Eric, the reason that many of the issues used in the campaign were not raised by Prop 8 proponents in court was *not* because the attorneys felt they were legally irrelevant, but because they were legally damaging. Establishing animus on the part of voters-cum-legislators goes directly to issues of constitutionality.
  15. Establishing animus on the part of voters-cum-legislators goes directly to issues of constitutionality.
    This is absolutely true, and there’s case law that back it up. One of the few cases ever where a law actually failed the rational basis test was Dept. of Agriculture v. Moreno, where a law restricting households containing unrelated persons from qualifying for food stamps was deemed unconstitutional, because it was intended to discriminate against hippies:
    The decision is an important one in defining the contours of the rational basis test: where the rational basis test applies (i.e. laws that do not impact a suspect class like race or a fundamental right like freedom of speech) state laws can discriminate between different groups of people foralmost any reason at all, but “because people hate group x” is not a permissible reason.
    Eric is wrong in insisting that the public policy considerations are irrelevant to the question of constitutionality. I think a quick trip down Constitutional caselaw lane will show that public policy is considered by courts when addressing constitutional questions all the time (look at almost any 4th-amendment case, for example). And in particular, when dealing with equal protection cases, the constitutional question is answered by the public policy question, no matter which test applies. State laws are evaluated under the 14th amendment by whether they are rationally related to a legitimate government purpose (i.e. public policy) under minimal scrutiny, and by whether they are narrowly tailored to achieve a compelling government interest (i.e. public policy) under the strict scrutiny test.
    So Eric’s comment sounds compelling, but it’s just not true as a matter of constitutional law. Chanson is absolutely right: one of the few ways for a law to fail the almost un-fail-able minimal scrutiny/rational basis test is for your law to be motivated by public animus. That basically snatches defeat from the jaws of victory. As a constitutional litigation tactic, you need to show how sound public policy favors your side, but if your sound public policy sounds too much like “people don’t like hippies,” then you lose.
  17. what a bad editorial decision all around.
    my Christian school newspaper published a terribly written opinion piece on masturbation. We all survived and the author had to live with the consequence that everyone on campus thought he was a creep.
    If pure dissent is considered offensive I’m surprised they had the courage to even consider publishing it.
  18. Probably the decision to publish it and the decision to rescind it were not made by the same person, or at the same tier of authority.
  19. You call that account “bland”?
    Yeah. It seemed perfunctory as much as anything else; I could barely tell that the reporter was at the meeting.
    Establishing animus on the part of voters-cum-legislators goes directly to issues of constitutionality.
    Are you aware of any case where a voter-approved law that would have been found constitutional otherwise was found unconstitutional because of voter animus?
    In other words, are you suggesting that Proposition 8 would be constitutional if there had been no anti-gay rhetoric during the campaign and voters had approved it anyway?
    The only case I’m aware of where voter animus has been mentioned at the Supreme Court isRomer, and in that case a Colorado amendment was thrown out (and correctly so, IMO) because it was far broader than needed to satisfy the requirements of a legitimate state interest. In that case, any talk of animus was dictum; there’s no indication the issue would have been addressed had the amendment not been overly broad.
    Eric is wrong in insisting that the public policy considerations are irrelevant to the question of constitutionality.
    Straw man. That’s not what I said, nor is it what I believe.
    Regarding Moreno, the regulation wasn’t tossed out because of animus; it was tossed because it set up a class that wasn’t rationally related to any legitimate government interest. The talk about the motives behind the passing of th rule are all quite interesting, but in the end it was the lack of the rational connection, not the animus, that led to the decision.
    With regard to Prop 8, ultimately, I expect, most of Judge Vaughn Walker’s findings of fact won’t get a lot of attention in the majority opinion of the Supreme Court. Whatever the court rules, I think it will be on fairly narrow 14th Amendment grounds related to how significant is the label that is applied to marital or marital-like relationships. We’ll see.
  20. Jack and Tim — Are either of you aware of how short of a leash student newspapers are on at evangelical colleges these days? Just curious.
  21. Straw man. That’s not what I said, nor is it what I believe.
    You said:
    “The purpose of the court (and of further courts that will consider the issue) is not to determine whether a ban on same-sex marriage is good policy. That was the voters’ job. The court’s purpose was to determine whether such a law is constitutional.
    A law can be good policy and still be unconstitutional. Or a law that is bad policy can allowed by the Constitution. The issues are quite separate from each other.”
    I don’t think it was a straw man at all.
    Regarding Moreno, the regulation wasn’t tossed out because of animus; it was tossed because it set up a class that wasn’t rationally related to any legitimate government interest. The talk about the motives behind the passing of th rule are all quite interesting, but in the end it was the lack of the rational connection, not the animus, that led to the decision.
    For minimal scrutiny cases, it’s not the class that has to be rationally related to a legitimate government interest; the question is whether the law that classifies is rationally related to a legitimate interest.
    The court determined that the Food Stamp Act’s legislative classification (between households where all members are related and those where all members are not related) was not rationally related to a legitimate government interest: it did not work rationally to prevent fraud or to further the intent of the Act. All it did was create an arbitrary disctinction between who gets assistance and who does not that was intended not to further the aims of the Act or to actually prevent fraud, but to discriminate against hippies and hippie communes.
    You could argue that the stuff about the impermissible purposes of the Act is all dicta and unnecessary for the court to reach the conclusion that it did. And if you needed to distinguish the case in a legal argument, that’s what you would do. But practically speaking, that’s a willfully naive position to take. The anti-hippie animus on the record clearly overshadows the court’s decision and colors it here. And as a result, a careful and competent lawyer arguing that a legislative classification passes rational basis review would do well to shy away from any indication at all that public animus motivated the classification, because as a practical matter, that’s going to get you the same result that it did in Moreno.
  22. I’m talking legal realism here: if you’re defending a law that is motivated by public animus, as a practical matter, you’re going to need to give the court a better government interest than you otherwise would. I grant that’s not what the test says: in theory, an evilly-motivated law should pass the rational basis test as long as the law is also rationally related to a legitimate government interest. But as a practical matter, a legislative record or fact situation that demonstrates public animus is going to tighten up the level of scrutiny a notch. Because that’s what “everybody knows” Moreno stands for.” N
    Nobody talks about Moreno as “the case where the legislative classification failed for being too poor of a match for the government’s interest.” In fact, just being a bad match for the legitimate interest shouldn’t actually make your law fail the minimal scrutiny test–that kind of analysis properly belings to strict scrutiny cases where the legislation has to be narrowly tailred. The public animus in Moreno is what tipped the scale. It’s a Brennan decision, for crying out loud.
  23. But as a practical matter, a legislative record or fact situation that demonstrates public animus is going to tighten up the level of scrutiny a notch.
    I have little doubt you’re right on that.
  24. After all, we’re talking about trial tactics here, not legal scholarship, which means pragmatic considerations are paramount. If you are arguing a case that looks like it might be Moreno, which the pro-Prop 8 lawyers clearly were (whether or not they thought Moreno was a good decision and whether or not they thought Prop 8 was the same as Moreno, they certainly had to be aware that a lot of people–including the other side and possibly the judge–were going to think it was), you want to try to distinguish Moreno as much as possible.
    There are only like half a dozen cases that have ever failed minimal scrutiny anyway. That means there’s pretty much a pragmatic textbook of how to lose a minimal scrutiny case. When arguing for Prop 8 under rational basis review, in addition to dealing with the test as articulated, they also had to make sure they didn;t fall into any of the holes of failure that are already out there. and articulating a public policy/i.e. government purpose that looks a lot like public animus is not a good way to avoid those holes.
  25. And speaking of legal issues, Kullervo, do you know much about standing? As odd as it may seem, that’s what this whole case could boil down to now.
  26. I would have had a devilishly hard time getting through law school without picking up at least a thing or two about standing.
    Staying on the legal realism page, standing has been historically a convenient way for higher courts to avoid spending judicial capital by directly dealing with a controversial issue. There are plenty of cases where the question of standing is clear, but there are also plenty where the court appears to be granting standing where there is none so it can answer a question it wants to, and not granting standing where there arguably is standing in order to avoid having to weigh in where weighing in would be uncomfortable.
    I strongly suspect that as this case goes up, the chances of it being dismissed for lack of standing will get pretty high.
  27. I’m sure that’s the case. But I certainly don’t fault the anti-Prop 8 lawyers for making the argument in an attempt to halt the appeal.
  28. I would fault any lawyer who did not make a standing argument in an attempt to halt the other side’s appeal; it would probably be malpractice not to do so. Assuming, of course, there’s an argument to be made that’s not frivolous.
    In an adversarial system, the court’s generally not supposed to do things sua sponte, i.e. without a motion to do it from one of the sides. So typically when the court dismisses a case for lack of standing, it’s because one of the parties made a motion for dismissal for lack of standing.
  29. Eric ~ To answer your question, I have no idea what the scene is like for student newspapers on evangelical campuses. I imagine the more fundamentalist-oriented ones (Southwestern, Dallas, etc.) are at least as bad as the DU and sometimes worse while the more progressive campuses (Fuller, North Park, etc.) are better off.
    I haven’t paid attention to the TEDS student newspaper at all.
  30. I’m curious. What if prop. 8 had been a constitutional amendment to the CA constitution? Isn’t that why many states have passed constitutional amendments banning g_ay marriage? The Supreme Court could review them, of course, and strike the amendments down (correct?) A law can be struck down on the basis of voter animus (if I understand the argument above) but can an amendment to a state constitution?
    PS. To your argument Jack, I am surprised/shocked that a story on inter-racial or interfaith marriage is still controversial in 2010. Perhaps I shouldn’t be – it seems like an argument from sixty years ago. Not in touch with current society or social trends.
  31. Proposition 8 was (and is) an amendment to the California constitution, not a statute.
    Its practical effect was to eliminate marriage between same-sex couples and to leave in place the law providing for civil unions between same-sex couples, which provide all the legal benefits and legal responsibilities of marriage but don’t call them marriages. The proposition was all about a label (which I don’t think is a big deal and probably not worth the political capital spent, but people on both sides obviously did and do).
  32. Oh, and Kullervo can correct me if I’m wrong, but I don’t think that even the Prop 8 opponents would say that a law could be struck solely because of animus, although the presence of animus might be used to determine how lawmakers (in this case, voters) intended a statute or law to be interpreted and/or what level of scrutiny to apply to a law. The key factor is whether a law fulfills legitimate government purposes; in this case, Judge Vaughn said Prop 8 does not.
    And that, I expect, is what the dominant legal argument will be in the appeals — does government have a legitimate purpose in limiting marriage to two-sex couples? Prop 8 backers will say yes (to promote family stability for the raising of children, among other reasons), and Prop 8 backers will say no (and that, in fact, such a restriction is harmful).
  33. Well, I think it would be misleading to say a law can be struck down because of voter animus. It’s more complicated than that.
    The short version is that the 14th amendment’s equal protection clause effectively restricts the degree to which states can classify people and act differently towards them (i.e., discriminate). Setting sex/gender aside because it’s complicated and not relevant and has weird case law, the equal protection clause is applied based on one of two standards. For a law passsed by a state that discriminates based on a suspect class (usually race) or that burdens a fundamental right (the liberties in the bill of rights, or one of the other half-dozen unenumerated fundamental rights that the court has recognized over the years) has to pass the strict scrutiny test, which means that the law in question has to serve a compelling government interest, must be narrowly tailored, and must use the least restrictive means to achieve its end. Very few laws have ever been found to pass the strict scrutiny test; when it applies to a law, it virtually guarantees that the law will be found unconstitutional.
    For any other law that classifies people and treats them differently, based on anything else at all (state welfare programs give you benefits based on your income; you cannot buy cigarettes until you are 18; preferential hiring for veterans in state agencies), the law only has to pass the minimal scrutiny test, which means the law that discriminates only has to be rationally related to a legitimate government purpose. Only about a half-dozen laws have ever been held to fail the minimal scrutiny test; when it applies to a law, it virtually guarantees that the law will be found constitutional.
    One of the cases where a law failed the minimal scrutiny test was this Moreno case that Eric and I were discussing. In Moreno, the state denied food stamp benefits to households where unrelated people lived together. The supreme court decision, written by Justice Brennan who was probably the most liberal judge to sit on the bench ever, held that the legislative scheme (which discriminated between households where everyone was related and households where everyone was not) was not rationally related to any legitimate government purpose. What muddied the waters a bit was that there was evidence in the legislative record that the intention of the law was to discriminate against hippies and hippie communes. Now, theoretically, that should not matter–a law with a bad/impermissible purpose should still be able to pass the minimal scrutiny test as long as it is also rationally related to a legitimate government purpose. But as a practical matter, Moreno as case law means that a law passed because of voter or legislative animus will probably have a harder time passing the minimal scrutiny test.
    It’s kind of messy caselaw, and conceptually it is bothersome because it is inconsistent with the otherwise relatively neat 14th amendment strict scrutiny/rational basis tests, but it is what it is.
    Now, your question about state laws versus state constitutions is directly answered by the Supremacy Clause of the US Constitution:
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    Federal laws trump state laws, every single time. That means, if a state law violates the 14th amendment’s equal protection clause, it is null and void, regardless of whether it is a state statute, administrative regulation, referendum, or constitutional provision.
    So all those states that have no-gay-marriage constitutional provisions are just as vulnerable to legal challenge as California.
  34. The key factor is whether a law fulfills legitimate government purposes; in this case, Judge Vaughn said Prop 8 does not.
    It doesn’t have to fulfill a legitimate government purpose; it only has to be rationally related to a legitimate government purpose.
    A bad, failure of a policy that obviously achieves nothing good should theoretically still be able to pass the minimal scrutiny test.
  35. Eric — to answer your question. the student newspaper at my Evangelical college would routinely run editorial pieces in opposition to the administration.
    I don’t know what it’s like now and I don’t know what it’s like at every other school. Bob Jones Univ., for example, might be just as controlled as BYU. I think a great many schools would have run side by side Pro and Con arguments for Prop 8.
  36. Kullervo said:
    It doesn’t have to fulfill a legitimate government purpose; it only has to be rationally related to a legitimate government purpose.
    There’s definitely a difference (and obviously a rational relationship is easier to show). Thanks for correcting my fuzzy terminology.
    Tim said:
    the student newspaper at my Evangelical college would routinely run editorial pieces in opposition to the administration.
    Actually, I’ve seen that at the BYU paper too, at least over relatively minor things. Perhaps something more analogous, would the paper at, say, Biola have been permitted to run an editorial endorsing Prop 8? Or, more radically, run a stand-alone opinion piece (like the Crall letter) taking the position that the Bible doesn’t condemn homosexual behavior? (Again, I’m asking out of curiosity. I’m not advancing the argument as an indirect way of defending BYU, which I think blundered in this case.)
    Tim also said:
    I think a great many schools would have run side by side Pro and Con arguments for Prop 8.
    And if the job of a liberal-arts college/university is to advance critical-thinking skills, that’s a good approach. And if I had been the editor of the BYU paper and had been concerned over running the Crall letter (which I would have wanted to do), I would have found someone to critique his argument and run it side by side to the Crall letter. Whether that would have passed muster, I don’t know.
  37. There’s definitely a difference (and obviously a rational relationship is easier to show). Thanks for correcting my fuzzy terminology.
    Eh, on the other hand, Moreno can definitely be read as a critique of the particular policy chosen.
  38. Can I interrupt the conversation for just a moment and ask a silly question? In terms of law, what is animus?
    (After taking heaps of psychology classes, I can only assume that the legal definition is not at all related to the psychological definition…)
  40. Kullervo – thanks! I found a basic dictionary definition, but I have long since given up on such definitions being reliable when it comes to legalese. And yes, the third definition is the one I picked up from psychology courses galore.
  41. So… I’d like to ask if I understand this correctly, addressed mostly at Kullervo, I guess, since he’s doing a lot of cogent teaching in this thread.
    – A “rational basis” test examines whether a law addresses a legitimate government interest, right? As in, Prop 8 can’t be a law unless California has legitimate government reasons to have it be a law?
    – Prop 22 failed at the California Supremes level because it failed both rational basis and strict scrutiny? (I read that decision, but without the training Kullervo has)
    – If a law was found to be enacted because of “animus”, based, I guess on enmity or fear of the people disadvantaged by it, then it’s a contributing factor towards it failing a legitimate interest test?
    – Does a lot of this hinge on whether or not homosexuals are classified as a “protected class” of citizens, as if Prop 8 could fail constitutionality tests if they are, and withstand them if they are not?
    – How much of this hinges on the federal legal definition of “marriage”, if any? (Is there any? Or are they leaving all that to the states?)
  42. – A “rational basis” test examines whether a law addresses a legitimate government interest, right? As in, Prop 8 can’t be a law unless California has legitimate government reasons to have it be a law?
    The rational basis test examines whether a law that discriminates between people on the basis of anything is rationally related to a legitimate government interest.
    – Prop 22 failed at the California Supremes level because it failed both rational basis and strict scrutiny?
    Laws don’t get analyzed under both tests. The court might discuss, as an academic question, how a law might fare under each test, but as a rule, if a law discriminates based on a suspect class or implicates a fundamental right, it has to pass the strict scrutiny test, which it probably won’t. Otherwise, the law has to pass the rational basis test, which it probably will.
    Prop 8 failed because it did not pass the rational basis test.
    – If a law was found to be enacted because of “animus”, based, I guess on enmity or fear of the people disadvantaged by it, then it’s a contributing factor towards it failing a legitimate interest test?
    As a practical matter, yeah. Probably. Analytically, it probably shouldn’t. And arguably, the bit about animus in the Moreno case is probably dicta (something the court says in a legal decision but which is not necessary for the court to reach the decision it reaches, and is thus not conttrolling precedent).
    – Does a lot of this hinge on whether or not homosexuals are classified as a “protected class” of citizens, as if Prop 8 could fail constitutionality tests if they are, and withstand them if they are not?
    Whether homosexuals are a protected class determines which test applies. Usually, as a practical matter, that answers the question, because almost no law fails the rational basis test and almost no law passes the strict scrutiny test.
    But sexual orientation is not a protected class or a fundamental right, so the court applied the rational basis test, not the strict scrutiny test. And the court says a gay marriage ban fails the rational basis test.
    – How much of this hinges on the federal legal definition of “marriage”, if any? (Is there any? Or are they leaving all that to the states?)
    1. None of this hinges on the federal definition of marriage. This hinges on laws that classify people and discriminate between them.
    2. “Marriage” may be defined different ways for the purposes of different federal laws, but any federal definition of marriage will probably incorporate the states’ definition of marriage. Because Congress can’t regulate marriage under Article I of the Constitution.
  43. It seems like there’s a difference of legal opinion about whether or not Article I prohibits Congress from defining marriage; they did it in 1996 through the DOMA, without imposing the definition on State laws, as I recall. Unless there’s been some new, settled case law in the meantime?
    I haven’t taken time yet to read through Perry v. Schwarzenegger to see if I agree, not that I get a vote, but I remember as the arguments and testimony were reported out of that trial not being persuaded at all by the Pro-8 people.
    Do you think that as a consequence of this decision, the constitutional prohibition on polygamy in Utah could be set aside on the same basis? Or domestic partnership laws which prohibit the arrangement for first cousins, etc? I guess what I’m asking here is whether there is anything inevitable in accepting Judge Walker’s reasoning, if it’s applied to other non-traditional household arrangements.
    I wonder, too, if Washington’s recent, popular, and very careful equating of domestic partnerships with marriages was rendered moot by the decision, if it’s upheld. And when this all becomes settled law.
  44. 1. DOMA has been already ruled unconstituional in Federal Court for violating the Tenth Amendment (powers reserved to the states). But even then, you are missing the finer point: Congress can define marriage (or anything else) for the purposes of a given federal law. But not just, in general. And certainly not for the states. And none of this is even remotely relevant in deciding the Equal Protection question.
    2. No, I do not think this decision leads anywhere inevitable at all. Other marriage restrictions will have to pass the same test. If they are rationally related to a legitimate government purpose, then they will pass. If not, they will fail. And good riddance: laws that are not rationally related to a legitimate government purpose are not good laws.
  45. As it is, DOMA is about the full faith and credit clause, i.e., whether other states have to recognize California’s gay marriages as legal marriages.
Categories:

Related Post:



0 коментарі:

Post a Comment

ClobberBlog | Mormonism, Evangelical Christianity